Employers must keep in mind the fact that there is a thin line between, on the one hand, confidential information belonging to a company that remains protected by virtue of the duty of loyalty and, on the other hand, the personal knowledge and skills that an employee has acquired throughout the years and is entitled to bring to a competitor.

Several recent court cases in the United States focus on the misappropriation of trade secrets by employees departing technology companies. These high profile American cases are a reminder that Canadian companies face the same issues.

In Canada, the issue of whether an NDA may be an unenforceable restraint of trade has been explored in the employment law context, however, there has been very little discussion as to whether an NDA could be considered a restraint of trade in transactions between two or more businesses. There has also been little discussion in Canada as to the distinction between trade secrets and ordinary confidential information. As such, US case law may provide some guidance.